Has the Refugee Convention outlived its usefulness?

Can an international convention drafted 60 years ago to protect a limited number of Europeans uprooted by World War II continue to provide protection to the millions of people around the world today forced to flee their countries for a variety of reasons?

Today, the UN Refugee Agency (UNHCR) is providing assistance and protection to over 15 million refugees throughout the world and the 1951 Convention relating to the Status of Refugees remains the cornerstone of that protection. However, millions more people have fled their countries for reasons that the drafters of the Convention could not have predicted.

“The context has changed,” said Christopher Horwood, coordinator of the Nairobi-based Regional Mixed Migration Secretariat (RMMS). “Climate change, endemic food insecurity, overpopulation and terrorism juxtaposed with technical advances that allow people to communicate and move more easily - this is the ‘perfect storm’ that has all the ingredients lined up so the flow of migrants, asylum-seekers and refugees is large and complex and well beyond the environment in which the Refugee Convention was designed.”

The Refugee Convention's definition of a refugee as a person who is unable or unwilling to return to his or her country of nationality, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion” has been criticized as too narrow in an era when people are forced to leave their countries for a whole range of reasons.

Both Africa and Central America recognized that the 1951 Convention was not adequate to cover the massive flows of refugees in their regions. The 1984 Cartagena Declaration and the 1969 Organization for African Unity (OAU) Convention expanded the definition of a refugee to include people compelled to leave their country due to events that have “seriously disturbed public order”.

Volker Türk, director of UNHCR's department of international protection, said most African governments respected the basic tenets of the OAU Convention, but Roni Amit, a researcher at the African Centre for Migration and Society at Witwatersrand University in Johannesburg, said it was not widely applied by officials conducting refugee status determination.

“I think the Refugee Convention [definition] is too narrow for the types of migration we see in Africa,” she said. However, “states don’t really have an interest in expanding the definition.”

Arguing that "the language of the Convention is sufficiently flexible to be able to deal with new threats", Türk insisted that the problem lies more with its application and implementation which varies from one country to the next.

Too broad or too narrow?

While human and refugee rights activists have argued that the Convention’s scope is too narrow, governments are more likely to argue that its provisions are too broad, especially those that prohibit states from penalizing asylum-seekers entering a country without proper documentation or from returning them to a country where their “life or freedom would be threatened”.

Refugee status determination procedures can be time-consuming and costly and lawmakers regularly complain that economic migrants apply for asylum in order to dodge immigration controls. This so-called “abuse” has been used to justify further tightening of borders and immigration regimes and more restrictive interpretations of the Convention’s provisions, particularly during the current economic downturn which has further eroded tolerance for asylum-seekers perceived to be competing for scarce jobs and resources.

“Most states don’t offer an alternative mechanism for people to enter the country legally so that’s why people rely on asylum,” said researcher Amit, citing the case of the millions of Zimbabweans who have applied for asylum in South Africa since the start of their country’s downward spiral.

Zimbabweans, like many asylum-seekers, tend to leave their country for a combination of reasons, both political and economic. This puts them in a grey area that has resulted in only a fraction of them being deemed genuine refugees by South Africa’s Home Affairs Department.

The pure refugee does exist, but there are many others who face insecurity because of economic problems and persecution

“As soon as you start talking to refugees you realize there’s always a mixture of motives,” commented Guy Goodwin-Gill, a senior research fellow and expert in international refugee law at Oxford University. “The pure refugee does exist, but there are many others who face insecurity because of economic problems and persecution.”

Defenders of the 1951 Convention have pointed out that it was never meant to address broader migration issues, but this does not help the many asylum-seekers described by Goodwin-Gill who are neither pure refugees nor pure economic migrants.

Speaking at a workshop marking the 60th anniversary of the Convention in May 2011, UNHCR’s assistant high commissioner, Erika Feller, recognized the plight of migrants such as those displaced by the Arab Spring uprisings. Although UNHCR worked with the International Organization for Migration to evacuate some of the stranded migrants and accommodate the rest in camps, Feller said: “The 1951 Convention is obviously not the answer here.” She instead called for “a more imaginative approach to accessible migration channels” that would provide an alternative to over-stretched asylum systems.

Nothing stretches an asylum system and the application of the Refugee Convention more than a sudden and massive influx of refugees resulting from an armed conflict. Determining individual refugee claims often becomes impractical as host countries grapple with providing new arrivals with basic humanitarian assistance and security. Countries have often responded to such mass influxes by temporarily providing protective status to a whole group of displaced people. Goodwin-Gill said such ad-hoc measures had been fairly effective.

Protracted refugee situations

“It’s the next stages that I do think we need to work on, the protracted refugee situation. How long are they going to be here? Are they going to go home or should we provide for them forever? It’s one area where the law provides no answers,” he said.

The Convention also provides little guidance on the issue of how countries should share the burden of refugee influxes. While developed countries tend to complain the loudest about the costs of processing and assisting refugees, a 2011 World Bank report found that 75 percent of refugees were living in neighbouring, usually low-income, countries that struggled to provide for their own citizens.

“It is true that we don’t have any global template [for burden-sharing] that could be adapted to different situations,” said Türk of UNHCR, adding that an expert meeting was convened in Amman last year as the first step towards developing such a framework.

In the long term, addressing the causes of a mass exodus like the one that has occurred from Zimbabwe could be less costly and more effective than relying on asylum systems to “solve all the problems of the world”, said Goodwin-Gill.

“Failure to deal with both ends of the bridge is a reason why migration at large is such a problem,” he added.

UNHCR is understandably wary about attempting to amend a Convention that has been acceded to by 148 countries. "I think opening it up at this stage would probably lead to a narrowing rather than a widening [of its protections], especially in the current climate of financial crisis and confusion in the public mind about refugee and migration movements," said Türk.

“Once the debate was opened up, some important points might be sacrificed,” agreed Goodwin-Gill, who supports developing complementary frameworks to fill some of the gaps left by the Convention such as one that would ensure fairer burden-sharing.

However, Horwood of RMMS argued that it is not new frameworks or laws that are needed, but the will to implement existing ones.

“Clear and harmonized immigration policies would do much to manage migration and stop what currently feels like a haemorrhage and one that is only growing,” he said.